This white paper on levies in Florida is reprinted with permission from Hiday & Ricke, PA. The original appears here in the News Section of their website. The author is Robert Hiday, CEO. We appreciate their willingness to allow us to share this valuable information with our readers.
What are Levies?
Florida has long been known as a “debtors haven” because it is one of a handful of states that provide extensive protections (above and beyond federal law) to those who are being pursued for past due obligations. People who collect debts in Florida have limited tools with which to work, and debts often go uncollected as a result. Because we are restricted by these laws, it is important to exploit every tool available while remaining in full compliance. Attorneys who specialize in debt collection know every angle that can be pursued. One of those, usually the “last resort,” is a levy, also sometimes referred to as an execution.
Chapter 56 of the Florida statutes empowers judgment creditors to seize nonexempt assets from judgment debtors. It seems very unusual, but if you have a judgment in Florida — for any type of debt — you can utilize this “nuclear option” to collect the debt.
Here is a common scenario to help explain how levies work:
- Creditor has a credit card balance due from debtor, who ignores the situation.
- Creditor sues debtor and eventually obtains a judgment against him.
- Regardless, debtor refuses to pay and Creditor is unable to find debtor’s employment or bank account.
- Creditor does learn that debtor owns a late model car/truck/boat/plane that has no liens on the title.
- Creditor levies upon the item, it is sold by the sheriff at auction and creditor receives the net proceeds of that sale toward satisfaction of the debt.
Before anything can be done, a valid and properly worded judgment must be in place. The underlying debt is irrelevant — it can even be for a non-debt matter, such as a car accident, etc. The creditor has the state issue a JLC (Judgment Lien Certificate) and gets the clerk to issue a Writ of Attachment. The details of the levied item are then carefully studied. Clear paperwork proving the ownership and lien status must be acquired.
It is wise to call the sheriff in the county where the property is located to learn how large a deposit they will charge to do the levy. The sheriff has statutory authority here and can arbitrarily charge a deposit amount they feel is appropriate. The deposit is used to pay for the Sheriff’s out-of-pocket expenses, and is reimbursed to the creditor if sufficient proceeds are garnered from the sale. The creditor then sends all of the above documents to that sheriff, along with a deposit check and approved ‘levy instruction’ form. From there it becomes a waiting game.
It is entirely up to the sheriff to pick the item up. Some sheriffs’ departments work quickly to pick up the item and others do not, so the time can vary from a few days to over a month. If the sheriff finds the item locked up (e.g., behind a fence or in a closed garage) or cannot be easily taken, they will contract the creditor to see if they want to get a “break order” issued, authorizing the sheriff to forcibly enter the locked area that has the vehicle and take it.
If the sheriff is successful in picking up the vehicle, they store it and place an ad in the local newspaper advertising the sale, usually about 5 to 6 weeks away. At any time in the process, the creditor and debtor can settle and the item can be returned to the debtor. If no settlement is reached, the sale is held and the item is given to the highest bidder who must have cash on hand at the sale. If the “winner” is not the creditor, that person pays the sheriff, and later the sheriff sends the net funds to the creditor, including full reimbursement for the cost deposit mentioned above.
In some cases there are no solid bids and the plaintiff (creditor) takes possession of the vehicle and markets it on their own. Regardless the outcome of that sale, the debtor is entitled to a credit for the sale amount of the item (even though the purchase was a credit bid by the creditor). It is our policy to give the debtor credit for the highest of either the sale amount of the sheriff’s sale, or the sale that we conduct on behalf of the creditor. Our firm handles this sale process so the client does not have to get involved in marketing the vehicle (unless the client prefers to do this).
Generally speaking, levies are a “last-ditch” effort to effect recovery in situations where the judgment debtor is completely uncooperative but has assets worth further pursuit. They are not always successful because the true condition of the vehicle cannot be known until it has been picked up and evaluated. The process usually involves a large cash outlay for the sheriff’s deposit, but often results in substantial recoveries in cases that would otherwise be uncollectible. We strongly believe in levies as a “last resort” remedy and routinely make solid recoveries, even in “uncollectible” situations. In the past few months, we recovered $17,000.00 in one levy and $14,600.00 in another. At any given time we have multiple levies underway.
Advice for Creditors
Most creditors fail to realize what can be done with a judgment in Florida, and often give up once the matter has gone to court. Some avoid court altogether. In our view, this is a mistake, especially when you consider the fact that Florida judgments are valid for 20 years. We recommend that you remain open-minded when it comes to post-judgment opportunities. It is essential that you retain experienced counsel that have expertise in handling multiple levies in the past. If you are serious about making debt recoveries in Florida, levies are one method that can significantly boost your bottom line.